### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE N ove m be r 17, 200 4 S es sio n

STA TE OF TEN NES SEE v. MA RGIE JEAN ETTE FA RLE Y

Direc t Appeal from the Circ uit Court for Warre n Coun ty No. F -8248 Jam es L. Weather ford, Ju dge

No. M2003- 02826-CCA -R3-C D - F iled Fe bruary 16, 2005

The de fenda nt was convic ted by a Warre n Countyjury

of fa cilitation of first deg ree felony murder, fac ilitation of especially

ag g ravated robbe ry , and criminallyneg lige nt homicide, which th e tr ia l c ourt

m er ged i n t o t h e f

ac i l i t at i o n o f f

el o n y m u rd erco n v i ct i o n

. T h e de fe n d an twa s s en t en ce d as a R an ge I , standard offende r t o twenty -five y ear s on the facilitation of felony murder c onviction and twelve
y ear s on the fac ilitation of especially ag g ravated robbery conviction, to be ser ved conse cutively , for an ef fec tive sentenc e of thirty -seve n y ear s in the Depa rtment of Corre ction. O nappea l, the defe ndant raises the following issues: whether the evidenc e wa s sufficien t t o s u s t ain her convictions and whether the court erre d by

not instructing the jury

as to ac cess o ry af

t er t h e fa ct and in imposing

consec utive sentenc es. Following our review, we aff irm the j udg ments of t he trial court but remand for e ntry of cor rec ted judg ments to refle ct the cor rec t offense date.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt s o f the Ci r c uit Co ur t A ffirm e d and Rem anded f

or Entry of Corre cte d Jud gm ents

A L AN E. G L EN N , J
., delivere d the opi nion of the court, in which T H O M A S T. W O O D A LL and R O BERT W. W EDEMEYER , J J ., joined.

R o b e r tS

. P e t e r s , W i n c h e s t e r , T e n n e s s e e , f o r t h e ap p e l l a n t , M ar g i e J e a n e t t e F ar l e y.

Paul G. Summers, Attorney Gene ral and Reporter ; Michelle Chapman McI ntire, Assistant Attorney Gene ral; Da le Potter, District Attorney Gene ral; and L arry

Bry an t , As sistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

L ate i n the eve ning on May 4, 2000, the def

endant, Ma

rg ie J eane tte Fa

rley , and a

co d e f e n d a n t, B r a d d ie E r ic Su ll iv a n , w e n t t o th e h o me o f th e v ic ti m, L o u ie B

. Jo h n s o n , in Wa rren County

. There
, Sulli van beat the victim to death with a tire tool be longing to the defe ndant and one-2-

of the c od e fe nd a nts too k the vic tim ’s wa lle t fr om h is p a nts . Su lli va n a ndthe de fe nd a nt the n f le d to F lorida in the de fen da nt’ s v e hic le . T he de fe nd a nt r e turne d to Te nn e sse e a ndwa s su bs e qu e ntl y questioned by

law enf orce ment officia ls. She was arrested on May 13, 2000, and she a nd Sulli van

wer e cha rg ed by a Warre n CountyGra nd J ury in a three -count indictment w ith f irst deg ree felony murder, e specia lly

ag g ravated robbe ry , and first de g ree preme ditated murder

.

P roof at Trial

Testify ing f

or the State, Way ne Millraney stated that he w as at the vic tim’s home betwe en 6:00 and 7:00 p.m. on Thursday , May 4, 2000, and the victi m was pre sent and in appa rent g ood health.

Mike McKinney

testified that he we nt to the vi ctim’s home around 4:45 p.m. on Friday , May 5, 2000, to look a t some dog box es for sale a nd discovere d the victim’s body ly ing in the ba cky ard. McKinney

then walke d to the near

by Delore s Marke t and aske d someone to ca ll 9-1-1.

Warren County

Sheriff’ s Deputy J im Shules testified t hat he was dispatched to the victim’s residenc e at 4446 Old Smit hville Roa d. Upon ar rival, he discove red the victim ly ing “ towards the end of his drive way ” and obse rved “ marks in the drive way ,” as if “ [s] omething ha d dug it up,” as well as bloodstains. He the n notified investigators, who took over the crime sc ene.

He rb e rt Row la nd , th e Chi e f Inv e sti g a tor for the Wa rr e n Co un ty

She ri ff ’s De pa

rt me nt, te sti fi e d th a t he wa s d isp a tc he d to inv e sti g a te the vic tim ’s de a th. He dis c ov e re d the vic tim ’s bo ots

nea r th e b o tt o m o f th e b a c k p o r c h s te p s a n d th e v ic ti m’ s p a n ts in th e y ar d
, b o th s e p ar a te from the victim’s body . The victim’s trailer was locke d, and R o wl and did not see a ny signs of a bre ak-in. About two day s later, Rowland a nd other investigators walked Old Smit hville Roa d and discove red a tire iron “ perc eived to be the murder wea pon.” About a mile f

rom the victim’s trailer , they found the victim’s wallet, which did not conta in any money , and a ba ndana. T hey also found some of the contents of the w allet strewn a bout the are a.

As the inv e sti g a tor s w e re tr y ing to de ve lop a su sp e c t, the de fe nd a nt’ s nam e “ c a me up ,” so Rowland interviewe d her at the Sparta Police De partment on May 11, 2000. This interview with the d e f e n d a n t , w h o w a s n o tye tu n d e r arr e s t , w a s v i d e o t a

p e d
, a n d t h e v i d e o t ap e w a s p l a ye d f o r t h e j u r y. Du ri ng the int e rv ie w, the de fe nd a nt state d that th e vic tim wa s h e r “ su g ar d a dd y ” a ndhe wa s w orth more to her alive than de ad. She said she w as in Geor g ia and F lorida with her f riend, Sharon Wil son, on the day

of the murder. She also stated that the last time she saw the victim was around Christmas of 1999, and the last time she spoke w ith him on t he telephone was a we ek or two be fore his death. Althou g h the def endant g ave othe r statements to police, this first one w as the only one that was videota

ped.

I nvestig ator Jackie Mathe ney , J r., of the War ren County Sheriff’ s Depa rtment testified that the tire tool was r ecove red ne ar 4281 O ld Smi thville Road, approxim ately two-tenths of a mile from-3-

the victim’s trailer. T he tire tool wa s collecte d and sent to the crime lab. The tire tool, wallet, and bandana wer e all found “ g oing ba ck into town” fr om the victim’s trailer.

Michae l Turbevil l e, a fore nsic scientist in the Serolog y and DNA Unit of the Tenne ssee B ur e a u o f Inv e sti g a tio n ( “ TB I ” ) C ri me L abo ratory in N a sh vil le , te sti fi e d th a t he wa s su mmo ne d to Warren County

to help proce ss the murder sc ene. The victim
, clothed in a shi rt and unde rwe ar, w as found ly ing in the y ard. His pants wer e located a few fee t f rom his he ad, and his boots were f ound approximately

thirty to thirty -five f

eet a way from his body . At least two tire tra ck impressions and

one shoe trac k impression wer e made, but some one other than Turbeville analy z ed t h o s e. L ater , Turbeville e x amined the de fenda nt’s 1992 Buic k Reg al for blood a nd discovere d that the ca rpet a nd upholstery

appar ently

had bee n clea ned with “some kind of cleaning ag ent or some kind of che mical

so lv ent ,” w hic h “ c ou ld h a ve po te nti a lly de str oy e d a ny

blo ode vid e nc e that w a s p re se nt. ” He a lso discovere d the victim’s blood and hair on the tire tool submitt ed to the crime lab. No blood was found on the victim ’s wallet, persona l paper s, or t he bandana. Whil e taking inventory of the B uick Reg al, he noted that the jack a nd the tire tool wer e missing f rom the vehic le.

B ob by Phi pp s, a

c or re c tio ns of

fi c e r w ith the Cumbe rl a ndCou nty She ri ff ’s Depart ment , testified that the code fenda nt, Eric Sullivan, was re lease d from the Cumberla nd CountyJ ail on May 3, 2000, at 2:50 p.m., after the def endant posted his bond.

Mark Eller, an acqua intance of the defe ndant, testified that he saw the de fenda nt and Sullivan at Philli p Smit h’s house a round 8:30 or 9:00 p.m. on May 4, 2000.

J ames Phillip S mith testi fied that the de fenda nt and Sullivan c ame to h is r esidenc e in Hickory Valley at Sparta a

round 1:00 p.m. on May 4, 2000, and g ave him about two g rams of methamphetamine to sell. L ater that day
, befor e dark, they returne d to Smit h’s t railer and re trieved the methampheta mine, which Smith had been una ble to sell. The def

endant a lso took a shower at Smit h’s trailer . The de fenda nt returne d to Smith’s trailer on May 11 and aske d Smit h to “g ive an alibi f or her and [S ullivan] .” Smit h g ave two statements to the police. I n the first statement, on May 11
, he pr ov ide d a n a lib i; h ow e ve r, on Ma y 12 , h e “ we nt t o th e She ri ff ’s De pa rt me nt a nda sk e d to ta lk to the detec tives” in order to “set the rec o rd st raig ht.” He a dmitted that he was not truthful in the first statement. When he sa w the def endant on Ma y

12, she had dy ed her

hair re d. Smit h said he, Sulli van, and the defe ndant had a ll used methamphetamine in the pa st, but on May 4, Sulli van and the def endant both appe are d “pre tty normal.”

Andre as “A ndy ” Allen testified that he dated the defe ndant when he was a teena g er a nd that they wer e “g ood friends.” He state d that he had r ead the defe ndant’s stateme nts acc using him of the

mur de r, bu t he c ou ld n ot h a ve do ne it b e c a us e he wa s inc arc e rate d in the Was hin g ton Cou nty Jail

on the da y

of the mur de r. Th e de fe nd a nt wr ote Al le n a le tte r wh ile he wa s in j a il a nda sk e d h im t o admit to committ ing the murder be cause “[Sul livan] t hreatened to kill her kid and kill her mama a nd her f amily if she told anything on him.” He believed the defe ndant “was in fea r of he r life whe n she wrote” the letter. On cr oss-examination, he stated that he f lushed the letter f

rom the def

endant down the toilet before any one could rea d it. He also testified that Sulli van had a violent reputation and ha d-4-

“whipped fi v e (5) deputies in Van B uren County out in the street.” H e ac knowledg ed that the defe ndant had a

history of violence and that she mig ht commit a violent act if influenc ed by

someone.

Me lis sa Kn ow le s tes tif

ie d tha t she kn e w the de fe nd a nt thr ou g h sch oo l and “ wa s ma rrie d in to her f amily .” On Ma y

4, 2000, the def

endant c ame to visit Knowles beca use she was upset and “ was having trouble with he r boy friend.” About two day s later, the defe ndant, ac companied by Sulli van,

c a me to Kn ow le s’ ho us e a g a in t o b or ro w s ome c lothe s b e c a us e sh e wa s g oin g on va c a tio n to Geor g ia. Sullivan waited in the defe ndant’s ca r while she bor

rowe d the clothes, a nd the def endant introduced Sullivan to Knowles, say ing, “ This is mynew boy friend E ric.” The de fenda nt’s hair wa s shorter tha n it was the last time Knowles saw her, and she had c hang ed the c olor. After her va cation, the defe ndant returne d to Knowles’ home alone and said she had been fig hting with Sullivan. The defe ndant beg an cry ing a nd said, “I can’ t talk to y ou about it. I just really

can’ t t al k ab o u t i t

. . . . Melissa, I don’t want to g et y ou into nothing [sic] .” She stated the defe ndant see med “ve ry scar ed” of Sullivan and told her, “[I ]t is bigg er tha n what y ou think.” On re direc t , Kn o wl es re fre shed her memory with her statement to police and stated t hat t he defenda nt actua lly borrowe d clothes fr om her on Ma y

4, 2000. The de fenda nt told her that the victim “wa s g oing to he lp h er [and] give her

mon e y to g e t ba c k on he r fe e t.” She a c kn ow le dg e d th a t th e vic tim ha d w ir e d $ 25 to h e r t o g ive to the de fe nd a nt.

Bill L ewis, the defe ndant’s ex-boy friend a nd fathe r of he r child, testified that in ea rly May 2000, the def

endant bor

rowe d som e m o n eyon a Tue sday for a bond for Eric Sullivan. The de fe nd a nt a ndSul liv a n c a me to h is h ou se on Wed ne sd a y a ndstay e d u nti l a

bo ut 11: 00 p. m. H e did not see the de fenda nt ag ain until she returne d a wee k later. At that time, the defe ndant’s hair was short and she ha d dy ed it a “bur g undy red c o l o r.” The def

endant c alled L ewis fr om Florida on a Monday , and he told her that the W arr en C ounty Sheriff’ s Depa rtment wanted to talk to him and that sh e ne e de d to re turn to War re n Cou nty a nd ta lk to the m a s we ll. He the n w ir e d h e r s ome mon e y to

a g roce ry store in Winter Have n, Florida . She arrived bac k in Tennesse e on a Wedne sday morning and told L ewis to “ g o see them [t he police] f irst a nd see what they wanted.” At first, the def endant told L ewis t hat “she didn’t do it,” and aske d if the victim’s body was found ne ar his tra iler. L ater , she told L ewis t hat “[ Sulli van] was going to protec t her or something.” L ewis took the def endant
to t al k t o t h e p olice on Thursday ; after war ds, she said she wa nted to put four new tires on her car beca use “he r ca

r wa s down at [the victim’s] .” L ewis then had four new tires put on the ca r at a tire shop. Although he paid the disposal fe e for the old tires to the shop, he took the tires at the defe ndant’s re quest and dumped them on the side of the Old CityDump Road. L ewis identified a lug w renc h in court, say ing it looked like the one he had see n in the defe ndant’s ca r. He also rec alled the victim’s rela tionship wit h the def endant, sa y ing he “fig ured tha t [ t h e v i ct im] was he r sug ar daddy .” About five or six y ear s befor e, the de fenda nt “h ad a co u p l e of friends name d Ang ie and John that ta lke d a

bo ut i f [the vic tim ] ev e r g ot r ob be d tha t the y wo uld ha ve to hit him in the he a d to

ro b h im. ” L e wi s a c kn ow le dg e d th a t he wa s n ot t ru thf ul i n his fi rs t state me nt to the po lic e bu t sa id he wa s truthful in his second statement.-5-

Dr. John E. Gerber

testified that he p erf

ormed the autopsy

on the victim’s body . He determined that the cause of death was “multiple blunt forc e injuries to the head” and conc luded that it was a homicide. H e desc ribed in detail t he various lacer ations, hemorrha g es, and f rac tures on the victim’s he ad and skull and stated that the wounds we re c onsistent with having be en ca used by the tire tool rec overe d in this case. He said the victim had no drug s in his sy stem, and his blood-alcohol
content wa s .01% which wa s “a ve ry small amount.”

I nvestig ator Tommy

My ers of

the Warre n CountySheriff’ s Depa rtment re v i ew ed the defe ndant’s initial videotaped state ment and re -intervi ew ed her, along with Melissa Knowles, on Ma y 12 , 2 00 0. Th e de fe nd a nt wa ive d he r Mir a nd a ri g hts a ndg a ve a

ha nd writt e n s ta te me nt t o M y e rs

. He r ead the entire state ment, in which the def endant a dmitted going to the victim’s house with Andy Al le n, wh om s he sa id kill e d th e vic tim :

I Ma rg ie F arl e y a m makin g thi s state me nt of my ow n f re e wi ll

a ndno on e ha s f

or c e d me to s a y

a nythi ng in this state me nt.

On Th ur sd a y

Ma y 4, 20 00 I wa s w ith a

frie nd& we we nt t o Melissa’s house to pic k up some clothes that I could wea r that she no lon g e r w a nte d. I to ld her that I wa nte d to le a ve tow n f

or a wh ile to g e t my lif e tog e the r. We l e ft

the re a ndwe nt t o Ph ill ip S mith’ s h ou se and I took a shower . We left there and Idropped my friend of f and found out that Andy

Allen was looking for me, wanted to talk he said. I went ther e, met him & w e lef t to go riding a

round & he wa s low of

c a sh & so wa s I

& I to ld him

that I ha d a su g ar d a dd y

in McMinniville [ sic] that Icould g et some c as h from. We ar rived a t [t he victim’s] at around 8:30 or 9:0 0 may be later . I

walked up & kn oc ke d o n th e do or

a nd[the vic tim ] ca me to the do or & op e ne d it
, he wa s drinking & he hug g ed me & said wher e have y ou been y ou be a uti fu l B itc h. He a sk e d if I ne e de d ciggarett es [sic ] an d I sa id
y e s[.] H e sa id do y ou wa nt m e to g o w ith y ou to D e lor e ’s Ma rk e t to g e t so me c ig are tte s a ndI

sa id n o ju st g iv e me so me mon e y be c a us e Delore ’s is closed and I will drive up to Ex x on and g et some. I knew that Andy was in the car

with me and I

didn’t want [the victim] to see him

. [T h e v i c t i m ] t h e n a s k e d i f I w a n t e d t o r i d e t o a b ar a n d Isa id
y es g et some shoes on & I will g o out to the car & straig hten it up & move my clothes brush & hair spray out of the seat because I

neede d
to t ell And y

wh a t he wa nte d to do , s o I wa lke d to the c ar a ndtol d Andy that he wa nted to g o to the bar but we would jus t t ell [t he vic tim ] tha t w e we re c ou sin s o r s ome thi ng and it w ou ld b e a lr ig ht. An dy the n s a id “ He ll n o” I

will not w a tc h th a t ol d B a sta rdpu t hi s hands all over

y ou. I said wait at the church for me and I will make an excuse to lea ve ea

rly & he said he would so he g ot out of the ca r like he wa s g oing to w alk to the churc h. I went bac k in to the trailer-6- and told [t he victim] t hat I was ready & he said he w as too so as we started out the door he tol d me t o g o first beca use he a lway s wanted to make sure that the doors was locked. As we started to my car I was

abo ut 5 feet ahead o f h im & the ne xt thi ng I re me mbe r [the vic tim ] was y el li n g & I

lo o k e d ar o u n d & A n d y

w a s h it ti n g h im

in th e h e ad with s o m et hing a nd he just kept hitting him. I was shocke d, scar ed & te rrifie d of all t h at was ha ppening & I

was y elling stop it y ou’re kil lin g him . A nd y the n stop pe d an d took the wa lle t ou t of

his pa nts ([the vict i m ’s ] )[.] He y elled let’s g o, let’s g o now so I panicke d & g ot in the car

& sta rted out t o t h e roa dway

& f rom there Andy dis po se d o f the wa lle t & we apo n. I then d ro ve wh e re I

wa s to ld t o drive until he disposed of the c lothes he was wea ring & f rom there I took him home & lef

t for F lorida.

The friend I

spoke of that wa s with me ea rlier be fore at Ph il li p ’ s w a s E r ic k

Su ll u v a n [s ic ].

My ers a nd the other inve stiga tors “wa nted t o believe” what the defe ndant was telling them and wa nted to “g ive her

the bene fit o f t h e doubt.” The de fenda nt ag ree d to cooper ate with the investigators and wore a body wire in a n eff ort to tape-r ecor d Andy

Allen talking about the victim’s death; howe ver, a fter two or three attempts, they

wer e unable to f

i n d Al len. Afte r talking among themselves and c omparing notes, the investig ators re alized there w ere “some thing s in [ the defe ndant’s stateme nt] that wer e not true.” My ers told the def endant they

“believe d that she wa sn’t being truthful” conc erning who wa s wi t h h er at t he victim’s trailer . The de fenda nt then told the investigators “that eve ry thing in the state ment was true except for a few things. One , that Andy Allen was not with her
, but it was Eric Sulli van.” Additionally , she stated that “ when [Sull ivan] was hitting [the victim] over the head that he told her to g rab the wallet, which she did.” The de fenda nt said they drove toward McMinnville w hen they left the victim’s residenc e, and Sullivan threw the tire tool and the victim’s wa llet out the window. Sulli van also thre w out his bandana beca use “he thought it may

have some of [the victim’s] blood on it.” At that time, the defe ndant also told them about B ill L ewis buy ing ne w tires for her car beca use she “wa s afr aid that [t he police] w ould track

some tire prints to her car .” The investigators then questioned L ewis ag ain, and he told them that the first statement he had g iven was not true and that the defendant “had asked him to lie for her .” L ewis took the investig ators to wher e the old tires were dumped, and the i nvestig ators re cover ed the four tire s. My ers revie wed his notes and testified that the de fenda nt told him that she and Sullivan went to th e v ictim’s trailer “ beca use they neede d some money

to go to Ge org ia to sell dope that [S ullivan] had with him.” I n addition, the defendant “said that she had taken her car and cleane d the

carpe t w ith b r ic k a c id to r e mo v e a n y b lo o d s ta in s

. ” T h e s e a d mi s s io n s w e r e n o t p art of the defe ndant’s wr itten statement bec ause, a s the investigators wer e attempting to ge t a cor rec ted
state me nt f

ro m th e de fe nd a nt, “ [s]he jus t bec a me ir a te a ndc us se d .

. . a ndsa id s he wa s n ot g oin g to sign a ny thing.” The investig ators ar rested the defe ndant and be g an looking for Eric Sullivan.-7-

On cr oss-examination, My ers state d that he did not vide otape any of his interviews with the defe ndant. Even thoug h there was videota ping e quipment at the W h i t e C o u n t yJ ail wher e the defe ndant was inter viewed, My ers stated he had “ never been tr ained” to videotape a n interview, ha d

ne ve r v ide ota

pe d a n in te rv ie w, a ndhis de pa rt me nt d id n ot h a ve the mon e y fo r s uc h e quip men t. My e rs state d h e “

jus t did n’ t thi nk abo ut i t.” On re dir e c t, h e re c a lle d th a t th e de fe nd a nt, in h e r l a st interview w ith him, s tated that she ke pt the tire tool behind her se at in the ca r for protec tion.

Th e de fe nd ant te sti fi e d th a t sh e me t th e vic tim thr ou g h mu tua l f

ri e nd s, John ny

a ndAn g ie Nunley , and they

had a “ rela tio n s h i p ” during those times when she a nd Bill L ewis we re ha ving problems. She and the vic tim often “dra nk a lot” whe n they wer e tog ether . Even whe n they wer e not dating, the y

wer e friends and the vic tim helped the def endant f inancially

.

She sa id tha t A nd y

Al le n w a s a n e x-bo y frie nd wh om s he da te d in 19 86 . Sh e fi rs t me t E ri c Sulli van at Allen’ s trailer in Sparta i n Ap ri l 2000. Allen and the de fenda nt were both using methamphetamine at the time, and Sullivan was both a methamphetamine user and “cook.” When she first met Sulli van, he and Allen, along with sever al ot her men, wer e cooking methamphetamine at Allen’s tra iler. She explained that methamphe t am i n e is addictive a nd “kee ps y ou awa ke . . .

ca u s es y o u t o be disillusional [ sic] . . . makes y ou very para noid and very

jittery .” The defe ndant started using methamphetamine about a month bef ore she met Sulli van. The defe ndant had ne ver seen Sullivan show any

violent tendencie s befor e the victim’s murde r.

T h e d ef en d an t said that on the day of the murde r, Sullivan had finished a batch of methamphetamine, a nd they went to Philli p Smit h’s house whe re Sul livan g ave Smi th “a c ouple of g rams or so” of methamphe tamine. They returne d later in the day , and af ter Sullivan discovere d that Smit h did not have the money for the methamphetamine, he became “a li ttle irate.” The de fenda nt had alr eady

asked to take a showe r at Smit h’s house and did so in or der to “ g et awa ke” be cause she ha d “ be e n u p f

or a c ou ple of da y s. ” She ha d c a lle d Me lis sa Kn ow le s a nd a sk e d h e r t o b ri ng so me clothes bec ause it was her intention to spend the nig ht with the victim in M cMinnville. Sull ivan

ro de wi th the de fe nd a nt to Mc Min nv ill e be c a us e “ [h]e ha d s ome frie nd s d ow n h e re in M c Min nv ill e that he could stay with, a nd he said that he was g oing to G eorg ia” beca use his pr obation was a

bout to be violated for

driving the def

endant’ s car on a revoke d license. The defe ndant took Sulli van by his friend’s house
, but he did not stay beca use his f riend was “proba

bly doing a cook” a nd was be ing watche d by

the police. The y

then went to the victim’s tra iler. The victim kne w that the def endant was on he r wa y

to spe nd the night with him, and she denied that there was a ny discussion betwee n her and Sulli van about robbing the vi ctim. The defenda nt’s mother and B ill L ewis also we re a war e that she wa s g oing to se e the victim.

They arrived at the victim’s trailer around 10:30 or 11: 00 p.m., and the defenda nt tried to g et Sulli van to g o inside, but “[h] e wa s just all paranoid.” The defe ndant went to the back door and lef t Sulli van in the passe ng er’ s seat of the car . The tire tool was in the back f loorboard be cause Allen

a ndSul liv a n h a d c ha ng e d th e de fe nd a nt’ s ti re a fe w d a y s b e fo re . T he vic tim a ns we re d the do or in his sh irt a ndun de rw e ar an d ask e d, “ [W]he re the he ll ha ve y ou be e n[,] y ou be a uti fu l bi tc h?” Sh e tol d the victim that a frie nd was in the c ar, a nd the victim sug g ested they g o to the Moose L odg e and g et-8-

her some c iga

rettes a nd drop her

friend of f. She then we nt out to the c ar and told Sul livan that the victim knew he wa s there a nd that he could g o with the m to the bar or they would g ive him a ride. Ho we ve r, Sul liv a n s a id he did no t wa nt a rid e bu t wa s g oin g to w a lk t o a ne arb y pa y ph on e a ndc a ll a friend. The de fenda nt went inside the victim’s trailer as Sullivan was g etting out of the ca r.

The d e f e n d a n t s a t a n d d r a n k mo s t o f a b e e r w h il e th e v ic ti m g o t d r e s s e d

. A s the ywer e leaving , the def

endant wa ited on the porch while t he victim locked the door. They “wa lked off the steps toget h er,” but the defe ndant then wa lked ahe ad of the victim some distance. She hea rd the victim say

“g oddamn,” a nd though t h e had fa llen beca use he ha d a bad hip. How ever , when she turned a round, she sa w the victim fig hting with Sulli v an an d s cr eame d for Sullivan to stop. S he testified, “[W] hen I

g ot [ Sulli van] to stop, Ibent down to see if [the victim] was okay . I was a sking him if he was oka y

and he w asn’t talking . I

could hea

r him g urg ling.” S u l livan scre amed f or her to gr ab the victim’s key s and wa llet, but she ref used. She pulled her own key s from her pocket a nd
went to her car

. As she was about to drive awa y , Sulli van jumped in the car , y elling, “ [D] rive the fucking car , bitch. Drive the fucking car befor e I g ive y ou the same thing that I just ga ve him.”

They stopped at a store, and the defe ndant called Bill L ewis who told her “ just to calm down, just calm down and listen to [S ullivan] and I will take care of t hings.” Sulli van thre w the wa llet and tir e too l on to the sid e of

the ro a d. Th e de fe nd a nt a ndSulli van drove to G e or g ia a ndthe n o n to Florida , and Sullivan told her that if she told any one, he w ould kill her son and “c ut him up and se nd him to [ her] in pieces.” When she returned to Tenne ssee, L ewis boug ht new tires f or her car and clea ned the inter ior.

I n her se cond s t atement, the defe ndant said Andy Allen was the murdere r bec ause “ [t he investigators] kept telli ng me that they knew that it was [Allen] that had done it” a nd, if she did not g ive the m a

writt e n s ta te me nt, “ the y

c ou ldn ’t pr ote c t me or

my kid .” She de nie d e ve r c on fe ssi ng to takin g the vic tim ’s wa lle t bu t a g re e d s he ha d take n ste ps to c ov e r u p th e c ri me by c ha ng ing he r t ir e s, clea ning he r ca

r, and making f

alse stateme nts to poli ce.

On cr oss-examinatio n , s h e acknowledg ed that she ha d spent time in prison after pleading g uiltyto ag g ravated kidnapping , which she had committed with her husba nd. She also stated that Sul liv a n to ok be tw e e n $7 00 a nd $9 00 fr om the vic tim ’s wa lle t a ndthat w he n s he le ft the vic tim

in his y ardne ar h is s te ps , h e wa s f ull y dr e sse d. She c ou ld n ot e xpla in h ow his bo ots or pa nts ha d c ome of f and sai d, “ Th a t ha s a lw a y s b e e n a my ste ry to m e .” She sa id s he ha d h e r h a ir c ut a nddy e d in Geor g i a t h e d ay af

t er the murder, a nd Sulli van cha ng ed his appe ara nce a s well bec ause “ he wa s afr aid the police w ould be looking f or us.” She also stated that Sullivan told her afte r the murde r that if she “w anted to know why he did it to call [her] boy friend [L ewis].”

Se nt e nc ing He ar ing

The s o le w it n e s s a t th e s e n te n c in g h e ar in g w a s D o n n a D u n la p , th e d e f e n d a n t’ s p r o bation office r who pre pare d the pre sentenc e re port. She test i fi ed concerning the defe ndant’s criminal

rec ord, which included a pending assault on a poli ce office r charg e in Warre n Countyand a violation-9-

of an order of

protec tion in 2000. S he also ha d an additional assault conviction and convictions for ag g ravated kidnappi n g an d three counts of for g ery . Additionally , althoug h the offe nse is not ide nti fi e d in the pr e se nte nc e re po rt , the de fe nd a nt ha d a con vic tio n in 19 90 fo r f ir ing a mis sil e int o a dwe lling. She also stated that the defe ndant was on parole three times but viol ated it ea ch time. Whil e in prison, the def

endant ha d obtained her G.E.D., and she told Dunla p that she had c ompleted “ang er ma nag ement an d s ex abuse a nd stress manag ement and substanc e abuse prog rams.” T he defe ndant also told Dun l ap t h at s h e bega n using a lcohol and Va lium when she wa s twelve a nd started using coca ine at the a g e of fourtee n, which she used t hree or four times a wee k. I n addition, she st ar te d u s in g me th a mp h e ta mi n e r ig h t b e f o r e th e v ic ti m’ s mu r d e r a n d w a s u s ing methamphetamine at the time of the murder

.

AN AL YSI S

I. Su ff iciency of the Evid ence

The de fenda nt arg ues that the e vidence was insuffic ient to support either he r convic tion for fa c ili ta tio n o f f

e lon y mur de r o r f

a c ili ta tio n o f e sp e c ia lly

a g g ra va te d r ob be ry . T he Sta te dis a g re e s.

I n considering this issue, we apply the familiar rule that wher e sufficie ncy of the convicting evidenc e is cha lleng ed, the r eleva nt question of the re viewing court is “whe ther, a fter vie wing the evidenc e in the lig ht most fa vorable to the prosec ution, any rational trier

of fa ct could have found the essential e lements of the c rime bey ond a re asonable doubt.” J ackson v. Virg inia, 443 U.S. 307, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9
, 6 1 L

. E d

. 2 d 5 6 0
, 5 7 3 (1 9 7 9 ); s ee al s o T en n

. R

. Ap p

. P

. 1 3 (e ) ( “F i n d i n gs of g uil t in c ri min a l a c tio ns wh e the r b y the tr ia l c ou rt

or jury sh a ll be se t a sid e if

the e vid e nc e is ins uf fi c ie nt t o s up po rt

the fi nd ing s b y

the tr ie r o f f

a c t of g uil t be y on d a

re a so na ble do ub t.” ); Sta te v. Evans, 838 S

. W

. 2d 185, 190-92 (Te nn. 1992); State v. Ander son, 835 S.W .2d 600, 604 (Tenn. Crim. App. 1992). All questions involvi ng the cr edibilityof witnesses, the weig ht a nd value to be g iven the evide nce, a nd all fac tual issues are resolved by the t rier of fac t. See State v. Pappas, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987) . “A g uilty verdic t by the jury , approve d by

the trial judg e,

acc redits the testi mony of t he witnesses for the State and re solves all conflicts in fa vor of the the ory of the S tate

. ” St a te v

. G r a c e , 4 9 3 S. W. 2 d 4 7 4
, 4 7 6 ( T e n n

. 1 9 7 3 )

. O u r s u p r e me c o u r t sta ted the rationale for this rule:

This well-settled rule rests on a sound f ou ndation. The trial judge and the jury see the witnesses fac e to f ace , hear their testimony and obser ve their de m eanor on the stand. Thus the tria l judge and jury are the primary

instrumentality

of justice to determine the weig ht and cr edibilityto be g iven to the testimony of witnesses. I n the trial forum alone is there human atmosphere a nd the totality of the

e vid e nc e c a nn ot b e re pr od uc e d w ith a writt e n r e c or d in thi s Co urt.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (c iting Carroll v. State, 212 Tenn. 464, 3 7 0 S. W. 2 d 5 2 3 ( 1 9 6 3 ) )

. A ju r y c o n v ic ti o n r e mo v e s th e p r e s u mp ti o n o f in n o c e n c e w ith w hich a-10-

defe ndant is initi ally

cloake d and re place s it wi th one of g uilt, so t hat on appe al, a c onvicted defe ndant has the bur den of demonstrating that the evidenc e is insufficient. See State v. Tug g le, 639 S.W .2d 913, 914 (Tenn. 1982)

.

F acilitation of F elony Murder

Th e de fe nd a nt’ s a

rg ume nt e sse nti a lly

is that be c a us e sh e wa s n ot c on vic te d o f a n o ff e ns e listed in Te nnessee Code Annotated section 39-13-202, i.e., robbery or attempted robbe ry , then her conviction for f

acilitation of fe lony

murder c annot stand, and “fa cilitation [of espec ially ag g ravated robbery ] would not constitute an underly ing f elony nece ssary

to establish the crime of felony murder.” As we understand, the defe ndant arg ues t hat t he guilty verdic ts returne d by

the jury wer e inconsistent in that in order to fa cilitate fe lony murder, she would also have to be found g u i l t yof either r obbery

or attempted r obbery

.

F a c ili ta tio n o f f

e lon y mur de r r e qu ir e s p ro of

that:

1. One of

the fe lonies listed in Tenn. Code Ann. § 39-13-202( a)( 2) or (3) wa s committed;

2. The victim was killed during the commission of that offe nse;

3. The de fenda nt knew that anothe r per son intended to commit the underly ing f elony , but he or sh e didno t ha ve the int e nt to pr omo te or a ssi st the c omm iss ion of the of fe ns e or to b e ne fi t in the proc eeds or

results of the of

fense ; and

4. The de fenda nt knowingly furnished substantial a ssistance to that per son in the

c o m m i s s i o n o f

t h e u n d e r l yi n g f

e l o n y.

See State v. Ely
, 48 S.W .3d 710, 719-20 (Tenn. 2001); Tenn. Code Ann. §§ 39- 11-403(a ), 39-13- 2 0 2 ( a ) ( 2 )

- ( 3 ) ( 2 0 0 3 ) ; se e als o St a te v

. Ph ar e z P r ic e , N o

. M 2 0 0 2

- 0 1 7 1 7

- CC A

- R3

- CD
, 2 0 0 3 WL 1868653, at *8 (Te n n

. C ri m

. Ap p . Apr. 11, 2003), pe rm. to appea l denied (Te nn. Oct. 13, 2003); State v. Marthias S. Phill ips, No. M2000-02575-CCA-R3-CD, 2002 WL 31202125, at *5 (T enn. Crim. App. Sept. 27, 2002), perm. to appe al denied ( Tenn. Jan. 27, 2003).

I n th e pr e se nt a

pp e a l, e sp e c ia lly

a g gravat e d r ob be ry , r a the r tha n f a c ili ta tio n o f e sp e c ia lly ag g ravate d r o b b e r y , w a s th e u n d e r lyin g f e lo n y s u p p o r ti n g th e f

a c il it a ti o n o f

f e lo n y mu rder conviction. The jury ’s ver dicts, finding the defe ndant g uiltyof fa cilitation o f felonymurder a nd fac ilitation of especially

ag g ravat ed robbe ry , obviouslyref lected its belief

that Sulli van killed the vic tim wh ile c omm itt ing a n e sp e c ia lly a g g ra va te d ro bb e ry a nd that Sul liv a n to ok the vic tim ’s wa lle t. Mo re ov e r, the ve rd ic ts r e fl e c t th a t th e jury be lie ve d the d efen dan t kn e w the ro bb e ry wa s g oin g to

occur and furnished substantial assistance t o Sulli van, who c ommitt ed the unde rly ing of fense s of espec ially ag g ravated robbe ry

and fe lony

murder. T he two ver di ct s ar e entirely consistent. The defe ndant did not strike the victim with the tire tool or rob him, nor did her conduc t rise to the level of criminal re s ponsibili ty as set forth in Tennessee Code Annotated se ction 39-11-402. The jury-11-

reje cted t h e cr i m e charg ed, fe lony murder, in f

avor of the lesser -included of

fense , fac ilitation of felony murder, w hich we ha ve stated is both “a prer og ative that the ju ry h as u n der our sy stem of jus tic e a nda

ri g ht t o w hic h a n a c c us e d is e nti tle d. ” Sta te v. Hi c ks
, 83 5 S.W. 2d 32 , 3 6 ( Te nn . Crim. Ap p. 19 92 ). Ac c or din g ly , th is i ssu e is w ith ou t me ri t.

F acilitation of

Especially Aggravated Robbery

The de f e n d a n t ar g u e s th a t th e e v id e n c e w a s in s u f f ic ie n t to s u p p o r t h e r c o n v ic ti o n for fa c ili ta tio n o f e sp e c ia lly a g g ra va te d ro bb e ry be c a us e the e vid e nc e a t tr ia l sh ow e d th a t “ the pr op e rt y that was taken from the person of the victim was not conne cted to the homicide” and that only a thef t

oc c ur re d b e c a us e th e “ta ki ng wa s d on e a ft e r the de a th o f the vic tim .” We w ill re vie w the se

arg ume nts

. Robbery is the “intentional or knowing theft of pr operty from the pe rson of a nother by violen c e or

pu tti ng the pe rs on in f

e ar. ” Te nn . Co de An n. § 3 9- 13 -4 01 (a ) ( 20 03 ). Es pe c ia lly ag g ravated robbe ry

is a robbery

acc omplished with a deadly wea pon and wher e the victim suffer s serious bodily

injury

. Tenn. Code Ann. § 39- 13-403(a ) (2003) . Fa cilitation, as previously discussed, require s that a def

endant, without intent to promote or assist in t h e co m m i s s ion of the robbe ry or benef it in the procee ds, knowing ly furnish substantial assistance in the commission of t he robbe ry and that the defe ndant knew the other person intended to c ommit the robbery

. Tenn. Code Ann. § 39-11-403( a) ( 2003).

Proof at trial established that Sulli van struck the victim in the head multiple times with a tire tool, resulting in the death of t he victim

. Contemporaneous w ith the murder, the vic tim’s wallet was taken fro m h i s p an t s. The State’s theor y at trial, in fac t, was that the victim’s pants litera lly wer e pulled from his body

in an effort t o g et his wallet fr om the pants. Clearly , the victim, who suffe red serious bodil y injury

leading to death, wa s robbed of his wallet and money

and this was

acc omplished w ith a deadly wea pon, namely

a tire tool. Subsequently , Sulli van took $700 to $900 from the wa llet. Whil e the defe ndant t estified at trial that Sul livan took the wallet fr om the victim’s pants, at one point she ha d admitted to the police that it was s h e wh o t o o k t h e wallet from the victim’s pants. The jury ’s ver dict o bviouslyref lected a belief tha t the defe ndant may not have phy sically

taken the victim’s w allet, but she nonetheless knowing ly furnished substantial a ssistance in th e c o mm is s io n o f th e r o b b e r y , a d e te r mi n a ti o n w h ic h is s u p p o r te d b y th e e v id e n c e

. She was prese nt during the robbe ry and murde r, drove her c odefe ndant from the sc ene to F lorida, cha ng ed her a ppear ance the day afte r the crime, helped spend the victim’s mone y during her trip, ha d her c ar

c le a ne d a nd tir e s cha ng e d in a n e ff ort to c on c e a l th e c ri me , a sk e d f ri e nd s to lie a ndpr ov ide a lib is,

a ndg a ve a t le a st thr e e dif fe re nt s torie s to the po lic e . We c on c lud e that th e e vid e nc e is su ff ic ie nt t o support this conviction.

Finally , the def

endant’ s convictions will stand reg ardle ss of the outcome of the trial of he r

c od e fe nd a nt, Eric Sul liv a n. B y virtue of Te nn e sse e Cod e An no ta te d s e c tio n 3 9- 11 -4 07 , th e ou tc ome of the c od e fe nd a nt’ s tria l c a nn ot b e ne fi t th is d e fe nd a nt:-12- I n a prose cution in which a person’ s criminal responsibilityis based upon the conduc t of another, the per son may be convic ted on proof of

c omm iss ion of

the of fe ns e a ndthat th e pe rs on wa s a pa rt y to o r f a c ili ta te d it s commission, and it is no defe nse that . . . [t] he per son for whose conduct the defe ndant is criminally

responsible ha s b ee n acquitted, ha s not been prosec uted or c onvicted, has been c onvicted of a differ ent offe nse or diff

ere nt type or c lass of off

ense, or is imm une fr om prosecution.

Tenn. Code Ann. § 39- 11-407 (200 3 ). I n sum, the defe ndant’s convic tions for fac ilitation of espec ially a g g ravated robbe ry

and fa cilitation of felony

murder, two distinct and se parate crimes, can stand independe ntl y re gar d l ess of whe ther Eric Sullivan is convicted or ac quitted, or neve r prosec uted at all, for

the under ly ing c rimes of e specia lly ag g ravated robbe ry

and fe lony

murder.

II. Jury Instruction as to Acce ssory After t he F act

The de fenda nt asserts that the trial court err ed in not including an instruction on acc essory

a ft e r the fa c t as a le sse r- inc lud e d o ff e ns e of e a c h o f the c ha

rg e d c ri me s in its jury

ins truc tio ns

. Acknowle dg ing the holdings of this c ourt in State v. Hodg kinson, 778 S.W .2d 54 (Tenn. Crim. App. 1989), and State v. H oosier, 631 S.W.2d 474 (Tenn. C rim. App. 1982), the de fenda nt notes that eac h conclude s an acc essory afte r the fac t instruc tion need be g iven only if the def endant is cha

rg ed in a

se pa rate c ou nt w ith a c c e sso ry a ft e r the fa c t. She a sse rt s, ho we ve r, that th os e c a se s “ inv olv e d f a c ts that a re a t od ds wi th the fa c ts p re se nte d in thi s c a se ” a ndthat th e fa c ts o f the pr e se nt c a se “esta blished the eleme nts of acc essory afte r the fac t.” We r espec tfully disag ree that the fa cts of the pr e se nt a pp e a l ju sti fy

ou r n ot a pp ly ing the ho ldi ng s in th os e c a se s. Th is c ou rt ha s c on sis te ntl y

he ld that a c c e sso ry

a ft e r the fa c t, a s d e fi ne d in Te nn e sse e Cod e An no ta te d s e c tio n 3 9- 11 -4 11 , is a se pa rate and distinct offe nse, ra ther than a lesser- included off

ense. See Hodgkinson, 778 S.W .2d at 63; Ho os ie r, 63 1 S. W.2 d a t 47 6. Mo re ov e r, thi s cou rt ha s con c lud e d th a t th e la nd ma rk c a se de a lin g wi th l es s er -i n cl u d ed o ff

en s es , S t at e v

. Bu rn s , 6 S

. W

. 3 d 4 5 3 (T en n

. 1 9 9 9 ), an d i t s an al y s i s d o n o tch an ge the traditional view tha t acc essory afte r the fac t is a separ ate and distinct offe nse fr om the substantive offe nse. See State v. Joel M. Puentes, No. M2001-0111 5 -CCA-R3-CD, 2002 WL 127366, at *4 (Ten n

. Crim

. A p p

. F e b

. 1
, 2 0 0 2 ) ; S tate v

. Jo n Ro b e r t G o o d a le
, N o

. M 2 0 0 0

- 0 2 1 4 0

- CC A

- R3-CD, 2001 WL 1077965, at **4-5 (T enn. Crim. App. Sept. 14, 2001), perm. to appeal de nied (Te nn. Fe b. 19, 2002). The de fenda nt was not cha rged in the indictment with acce ssory afte r the fa ct; and,

acc ording ly , it was not err or whe n the jury was not instructed on this offe nse.

III . Se nt e nc ing

Th e trial cou rt

imp os e d c on se c uti ve se nte nc e s b a se d o n tw o o f the c ri te ri a se t f orth i n Tenne ssee Code A nnotated sec tion 40-35-115, namely that th e d e f

e n d an t w a s a

p r o f e s sional criminal who has knowing ly

devoted he r life to criminal acts as a major source of l ivelihood and her rec ord of criminal activity

is ex tensive. She admits the ex istence and applicability of an extensive criminal

rec ord but disputes that the rec ord supports t he trial court’s determination t hat s he devote d her life to criminal ac ts as a major sour ce of livelihood. Additionally , she asse rts that consec utive sentenc es-13-

are no t pe rm itt e d u nd e r T e nn e sse e Cod e An no ta te d se c tio n 40 -3 5- 11 5 if on ly on e of the c ri te ri a is

app lic able . T he State dis a g re e s.

When an accuse d challeng es t he leng th, rang e, or ma nner of service of a se ntence , it is t he d u t y of this court to conduc t a de novo r e v ie w o n th e r e c o r d w ith a p r e s u mp tion that “the determinations made by

the court from which the a ppeal is take n are corr ect.” Tenn. Code Ann. § 40-35-401( d). This pr esumption is “conditioned upon the aff irmative showing in the rec ord that the trial court c onsidered the sentenc ing principles and all rele vant facts and cir cumstance s.” State v. Ashby
, 823 S.W .2d 166, 169 (Tenn. 1991). I n conducting a de novo revie w of a sentenc e, this court must consider (a ) any

evidenc e rece ived at the t rial and/or sentenc ing hearing, (b) the pr esente nce report, (c) the principles of se ntencing , (d) the a rg ument s o f co unsel relative to sentencing

a lte rn a tiv e s, (e ) the na tur e a nd c ha ra c te ri sti c s of the of

fe ns e , (f ) a ny mit ig a tin g or

e nh a nc ing fa c tor s, (g ) any statements made by

the ac cused in his own beha lf, and (h) the ac cused' s potential or lack of potential for r ehabilitation or treatment. See Tenn. Code A nn. §§ 40-35-103, - 210.

The pa rty challeng ing the sentenc es imposed by the t rial court has t he burden of esta blishing that the sentenc es ar e er

roneous. See Tenn. Code Ann.§ 40- 35-401, Sentencing Commi ssion Cm ts.;

see a lso Ashby , 823 S.W .2d at 169.

The Te nnessee Criminal Sentencing Reform Ac t of 1989, ena cted to “pr omote justice,” Te nn

. Cod e An n. § 40 -3 5- 10 2 (2 00 3)
, pr ov ide s that the se nte nc e imp os e d up on a n of fe nd e r s ho uld be the “ least seve re me asure nece ssary to achieve the purposes for which the se ntence is imposed.” Tenn. Code Ann. § 40- 35-103(4) (2003).

A trial court may order

that the sentenc es of a

defe ndant convicte d of multiple offense s be

serve d consec utively

if any one of the statutory

criteria in Tenne ssee Code Annotated section 40-35- 115 is met. These considerations are set out in the alternative with the disjunctive “or ”; there fore
, only one of the criteria nee d be met in order for the trial court to impose consec utive sentenc es. The defe ndant admits she has a n extensive criminal rec ord. That a lone supports the imposition of

consec utive sentenc es. Ac cording to the prese ntence report summary , the def endant’ s numerous incar cer ations resulted in her having a spotty

work re cord:

[The defe ndant] has a very limit ed wor

k history since most of her

adult life has bee n spent in t h e prison sy stem. Whi le in prison she has be en on the work re lease prog ram and worke d on the landsca ping cre w. She stated she also helped B ill L ewis i n his roofing business but this was not verified. She
state d s he didwo rk fo r L TD ou t of Sm ith vil le fo r a bo ut o ne y e ar b ut d ue to surg ery quit that job. I n September, 1990, [the def endant] was ar

rested, a long with her husband, Paul F arle y , for ag g ravated kidnapping and robbery . She

rec eived a twelve y ear sentenc e for this a nd serve d this in t he women’ s prison in D avidson County . She was pa roled on June 8, 1993. She violated her parole by obtaining a

new c harg e of posse ssion of m ar ijuana on F eb. 14, 19 94 . H e r p aro le wa s r e vo ked on Mar c h 2 1, 19 94 a ndsh e wa s r e turne d to-14- prison. She was pa

ro l ed ag ain on September 18, 1995. Once ag ain she violated her p ar o l e on De cembe r 8, 1995 by testing positive for

coca ine on

a dr ug sc re e n. He r p aro le wa s re vo ke d on Janu ary 23
, 19 96 . [T he de fe nd a nt] was pa roled a g ain on Fe bruary

24, 1997. On Novembe r 3, 1997 [she] t ested positive for coc aine and this violated her parole. H er pa role wa s revoke d on Dec ember

2, 1997 and she w as re turned to prison. Her sentenc e expired on April 26, 1999.

The pre s en t ence re port also indicates the defe ndant has the f ollowing prior criminal history : an assault cha

rg e in 2001; violation of an order of protec tion in 2000; a misdemeanor assault conviction in 1999; an ag g ravated ki dnapping conviction i n 1991; and a felony forg ery conviction in 1990. The trial court ne ed only

find t h e p re s en ce o f any one of the se criteria “ by a pre pondera nce of

the evidenc e.” T enn. Code Ann. § 40- 35-115(b) (2003). The defe ndant’s leng thy rec ord of c onvictions shows that s h e h as been a ctive in committing crimes, but not the ex tent to which she supporte d herse lf by these a cts during the periods she was not inca rce rate d. Howeve r, eve n if the trial court

err ed in determining that s h e was a profe ssional criminal, the def endant’ s numerous convic tions j u s t i fyco n s ec u t i v e s en t en ci n g.

CO NC LU SION

Ba sed on the for eg oing a uthorities and re aso n i n g, the judg ments of the trial c ourt are aff irmed. Howe ver, w e note that the judg ments list differing offense dates, with t he two which a re the basis for this appea l listi ng May 7, 2000, as t he offense date, whil e that of criminally neg lige nt homicide, which wa s merg ed with the convic tion for fa cilitati o n of fe lony murder, be ars Ma y

5, 2000, as t he offense date. Ac cording to the proof, the of fense s occur

red on Ma y

4-5, 2000, and w e

rema nd for e ntry

of cor rec ted judg ments ref

lecting this date.

___________________________________ ALAN E. GL

ENN, JUDGE